Will America Challenge China's Sweeping Sovereignty Claims?

Over the last decade, China has used its Nine-Dash Line to claim sovereignty over virtually the entire South China Sea. The country has backed up its sweeping sovereignty claims with a series of increasingly aggressive seizures of national features and by constructing artificial islands.

The Obama administration responded by authorizing three putative Freedom of Navigation Operations, known as FONOPs, which actually made matters worse. That is because during the three operations U.S. ships simply transited through the waters that China has claimed as its territorial seas as if quickly making “innocent passages” in and out of the area. There was no lingering, no maneuvering, no exercises and the fire-control radars on the ships were off—just as if they were steaming through the waters off Shanghai. That effectively conceded a slice of the South China Sea to Chinese sovereignty.

By contrast, in May, the USS Dewey entered within twelve nautical miles of the Mischief Reef in the Spratly Archipelago. The Arleigh Burke–class guided missile destroyer sailed through the area in a zigzag pattern, and conducted a “man overboard” rescue drill. In other words, it conducted an exercise in a routine high-seas operational mode.

The People's Liberation Army Navy (PLAN) tried to intercept and “expel” the naval destroyer, but its crew ignored the Chinese ships and continued with the peaceful exercise of navigational freedoms. The May operation seemed to indicate that restrictions on the Navy’s conduct of FONOPs had been finally lifted and that meaningful challenges to China’s dangerous overreach in the South China Sea were underway. Most observers, here and abroad, were relieved, but not all of them believed that the USS Dewey had conducted an official FONOP.

In Lawfare last month, Professors Peter A. Dutton and Isaac B. Kardon deliver a sweeping theoretical challenge to the Navy’s FONOPs program, including to the widely hailed operation conducted by the USS Dewey.

"But did the Dewey actually conduct a FONOP? Probably—but maybe not," the authors state in their analysis. "Nothing in the official description of the operation or in open source reporting explicitly states that a FONOP was in fact conducted. Despite the fanfare, the messaging continues to be muddled. And that is both unnecessary and unhelpful."

Why such a harsh judgment given that the USS Dewey conducted the most straightforward FONOP in the South China Sea over the past two years? The description is all the more mystifying when the authors make these statements in their article:

“The man overboard drill is the clearest suggestion that an intentional—and approved—FONOP occurred.”

“The Dewey was plainly operating in a mode consistent with high seas freedoms, and not in the ‘continuous and expeditious’ manner required of innocent passage through a claimed and accepted 12 nm territorial sea.”

One is tempted to speculate that the authors believe that the Navy could only validate the FONOP by effectively announcing: Now hear this! This was a FONOP. Or perhaps the State Department needs to send a démarche to China, which is something that is often done during formal FONOPs. But sometimes actions speak louder than legalisms.

Interestingly, the article makes a contradictory argument: “Traditionally, FONOPs are operationally minimal and diplomatically low-key. The point is not to menace the offending state with gunboats or to upstage them with publicity.”

What seemed to be most troubling to the authors about the USS Dewey operation was notthat its message was muddled, but that it was all too clear: “FONOPs are not primarily designed to send targeted signals of resolve, reassurance, commitment, deterrence, or any other of the many political-military signals the United States sends through its naval operations.”

The authors seek to make much of the distinction between a FONOP being “a specialized tool to protect discrete legal norms that underpin the order of the oceans” and “the general exercise of routine navigational freedoms.”

But the Defense Department’s own FONOPs report states that the two concepts are part and parcel of the same Navy mission: "Since the founding of the nation, the United States has asserted a vital national interest in preserving the freedom of the seas, calling on its military forces to protect that interest."

The department report explicitly notes the seamlessness of ensuring navigational freedom by challenging “excessive maritime claims—that if left unchallenged, could impinge on the rights, freedoms, and uses of the sea and airspace guaranteed to all States under international law.”

In the authors’ telling, there are pure FONOPs, pure routine navigational freedom operations and mixed operations.

"According to the official department description, the fleet may also conduct 'FON-related' activities, where a freedom of navigation challenge is a secondary effect of an operation with a different primary purpose," the authors state.